Lessons In Islamic Jurisprudence

Lessons in Islamic Jurisprudence RELATED TITLES FROM ONEWORLD Speaking in God’s Name: Islamic Law, Authority and Women, Khaled M. Abou El Fadl, ISBN 1-85168-262-7 Lessons in Islamic Jurisprudence M U HA M M A D B AQ I R A S - S A D R Translated and with an introduction by R O Y PA RV I Z M O T TA H E D E H To my Arab friends past and present, Albert Hourani, Charles Issawi, Jeanette Wakin, and so many others, who taught me so much and have so much more to teach me. LESSONS IN ISLAMIC JURISPRUDENCE Oneworld Publications (Sales and Editorial) 185 Banbury Road Oxford OX2 7AR England www.oneworld-publications.com © Roy Mottahedeh 2003 Reprinted in paperback 2005 Original Arabic version Muhammad Baqir al-Sadr, Durus fŠ cIlm al-Us>ul, Beirut: Dar al-Kitab al-LubnanŠ, 1978 All rights reserved. Copyright under Berne Convention A CIP record for this title is available from the British Library ISBN 1–85168–324–0 Cover design and typesetting by Saxon Graphics Ltd, Derby, UK Printed and bound in the USA by McNaughton & Gunn Produced in association with the Harvard Center for Middle Eastern Studies NL08 Contents Preface Introduction viii 1 1 Characterization of Jurisprudence A preliminary word Characterization of jurisprudence The subject-matter of jurisprudence The discipline of jurisprudence is the logic of legal understanding The importance of the discipline of jurisprudence in the practice of derivation Jurisprudence is to legal understanding as theory is to application The interaction between legal-understanding thought and jurisprudential thought The permissibility of the process of deriving divine-legal rulings 35 37 39 40 41 42 44 46 2 Substantiating Arguments The divine-law ruling and its subdivision The division of rulings into injunctive and declaratory Categories of the injunctive ruling Areas of discussion in the discipline of jurisprudence 54 55 56 57 vi Contents Division of the discussion according to types [Probativity of assurance is] the element common to both types Type 1: substantiating arguments Subdivisions of the discussion 1. The divine-law argument A. THE VERBAL DIVINE-LAW ARGUMENT Introduction What “designation” and “lexical connection” are What is “use”? Literal speech and figurative speech The figurative is sometimes turned into the literal The classification of language into substantive and relational meanings The form of the sentence The complete sentence and the incomplete sentence The lexical signified and the assentable signified Declarative and performative sentences Significations which jurisprudence discusses i. The form of the imperative ii. The prohibitive form of the verb iii. Absolute expression iv. Particles of generality v. The particle of the conditional The probativity of the prima-facie meaning Applications of the principle of the probativity of the prima-facie sense to verbal arguments The connected and independent context Establishing the source B. THE NON-VERBAL DIVINE-LAW ARGUMENT Rational arguments: the study of rational connections Subdivision of the discussion Connections arising between one ruling and another i. The connection between mandatory and prohibited ii. Does prohibitedness require invalidation? Connections arising between a ruling and its subject Promulgation and actuality The subject of a ruling 57 58 62 63 64 64 64 65 70 72 73 73 75 76 77 80 82 83 85 87 88 89 91 94 96 97 100 103 105 105 105 108 109 109 111 Contents vii Connections between a ruling and its dependent object Connections arising between a ruling and its ne